The announcement from the United States Supreme Court to reconsider Fisher v. University of Texas at Austin (Fisher I) presents an opportunity to revisit Regents of the University of California v. Bakke, which controls affirmative action jurisprudence. This Article argues that Bakke is immune from reversal under stare decisis principles, because the use of race in admission programs is deeply engrained in our constitutional law. The Court's race ideologues seek, however, to alter Bakke to reflect their vision of racial equality. In Fisher II, the Court should not change its jurisprudence to reflect any doctrinal extreme.
Arguing that Bakke was incorrectly decided is not enough to justify reversal. Stare decisis doctrine requires that opponents offer a prudential reason to overturn it. Removing racial preferences from university admissions would devastate higher education. Bakke sparked the creation of bureaucracies at universities that steer diverse students to pursue enrollment. Moreover, reversal would unsettle workable rules that guide higher education in this area. Not only is the stability of affirmative action doctrine at stake, but the future of race-relations is also in play.
Many argue that a strictly color-blind approach to affirmative action will foster racial harmony. However, the movement to enact this theory at the state level has short-circuited the debate by denying all sides the opportunity to express their concerns on race policy. Bakke reinforces democratic values by permitting society to craft policies designed to improve racial health.
Charles Adside III,
Replay That Tune: Defending Bakke on Stare Decisis Grounds,
64 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol64/iss3/7